“[A] new car need not ‘be perfect in every detail’; rather, its implied merchantability requires only that a vehicle be reasonably suited for ordinary use.” (Brand v. Hyundai Motor America (2014) 226 Cal.App.4th 1538, 1546.)

The implied warranty of merchantability has a maximum duration of one-year. (Civ. Code, § 1791.1, subd. (c).) In this instance, it is undisputed the implied warranty of merchantability expired no later than July 10, 2024. (See SSUF Nos. 1 and 18 [ROA No. 185].)

Initially, in challenging Plaintiff’s claim for breach of the implied warranty, Defendant cites the undisputed fact that Plaintiff used the vehicle “for ordinary personal and family transportation, including work, her children’s school and daycare, Disneyland and other trips.” (See Motion: 6:24-26, citing SSUF No. 8.) Defendant suggests the above fact establishes the vehicle was “fit for the ordinary purpose,” however, Defendant’s suggestion runs contrary to applicable authority: “We reject the notion that merely because a vehicle provides transportation from point A to point B, it necessarily does not violate the implied warranty of merchantability. A vehicle that smells, lurches, clanks, and emits smoke over an extended period of time is not fit for its intended purpose.” (Isip v. Mercedes-Benz USA, LLC (2007) 155 Cal.App.4th 19, 27.)

Next, in challenging Plaintiff’s claim, Defendant analogizes to Brand v. Hyundai Motor America (2014) 226 Cal.App.4th 1538, wherein the Court of Appeal held that “a reasonable jury could conclude that a vehicle sunroof that opens and closes on its own creates a substantial safety hazard.” (Id. at p. 1547.) In Brand, the Court of Appeal reversed a judgment of nonsuit in favor of the car manufacturer, on the claim for breach of the implied warranty of merchantability. (Id. at p. 1541.)

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In citing Brand, the implication is that Plaintiff’s vehicle suffered from issues more minor than a misbehaving sunroof; however, Defendant concedes Plaintiff made multiple complaints regarding the vehicle shutting off while driving. (See Motion: 2:17-19, 2:26-28, 3:7-9 and 3:17- 19 [citing SSUF Nos. 14, 26, 27 and 28].)

The Court finds that a vehicle which randomly shuts off while driving poses a substantial safety hazard, at least equal to a defective sunroof.

Finally, Defendant asserts the vehicle was fit for its ordinary purpose, as all complaints were either repaired or could not be duplicated; however, Defendant has not supported this assertion with sufficient admissible evidence.

To support this argument, Defendant relies entirely on Exhibits 4 through 7 (SSUF Nos. 14-17, 24 and 26-28); however, as indicated above, Defendant failed to properly authenticate Exhibits 4, 5 and 7.

Moreover, Defendant relies on hearsay statements within the documents: For example, Defendant relies on the following statement, to prove a defective battery was the cause of Plaintiff’s complaint on April 1, 2024, and was subsequently repaired: “Battery found bad. Replaced battery, would not start, hooked up HDS, clears all battery codes. Tested. Battery good. Car starts. Complaint no longer present.” (See ¶6 of Atallah Declaration and Exhibit 4 thereto [ROA No. 159] [capitalization altered from original].)

Defendant relies on the statements “unable to duplicate customers concern” and “test drove vehicle on the street at 19 mph for 43 miles still no malfunction,” to establish that Plaintiff’s complaint on April 9, 2024, did not identify a defect. (¶7 of Atallah Declaration and Exhibit 5 thereto [ROA No. 159].)

Defendant relies on a notation within Exhibit 6, which states “Replace Relay Module,” to establish that Plaintiff’s complaints on April 13, 2024, were resolved by the stated repair. (¶8 of Atallah Declaration and Exhibit 6 thereto [ROA No. 159])

Finally, Defendant relies on a notation within Exhibit 7 which states “starter was replaced and vehicle started up,” to demonstrate that Plaintiff’s complaint dated July 9, 2024, was repaired. (¶9 of Atallah Declaration and Exhibit 7 thereto [ROA No. 159].)

Defendant has not, however, established a hearsay exception for the above statements, to permit their consideration for their truth.

Based on the above, Defendant failed to meet its moving burden, with respect to the First Cause of Action.

Additionally, Plaintiff submitted sufficient evidence to establish a triable issue: Plaintiff’s declaration indicates the vehicle turned off while driving, multiple times between April 1, 2024, and July 9, 2024. (¶3-¶6 of Palafox Declaration [ROA No. 187].) Consequently, Plaintiff’s declaration indicates Defendant’s reported repairs did not remedy the defective performance of the vehicle. (Ibid.) Per Plaintiff, “[t]he ongoing issues of having the Vehicle turn off and not shift into gear was a serious safety concern, putting my family and other people on the road at serious risk and I was not willing to continue driving the Vehicle.” (¶7 of Palafox Declaration [ROA No. 187].)

The above is sufficient to demonstrate a triable issue, with respect to whether the vehicle was “fit for its ordinary purpose,” as required to be merchantable.

With respect to Plaintiff’s Second Cause of Action, if a manufacturer “is unable to service or repair a new motor vehicle...to conform to the applicable express warranties after a reasonable number of attempts, the manufacturer shall either promptly replace the new motor vehicle...or promptly make restitution to the buyer....” (Civ. Code, § 1793.2, subd. (d)(2).)

As explained in Silvio v. Ford Motor Co. (2003) 109 Cal.App.4th 1205, “[t]he statute requires the manufacturer to afford the specified remedies of restitution or replacement if that manufacturer is unable to repair the vehicle ‘after a reasonable number of attempts.’” (Id. at p. 1208.) “‘Attempts’ is plural. The statute does not require the manufacturer to make restitution or replace a vehicle if it has had only one opportunity to repair that vehicle.” (Ibid.)

Citing Silvio, Defendant asserts Plaintiff’s claim fails. (See Motion: 8:27- 9:2 [ROA No. 157].) The implied argument is that each reported complaint was repaired after one attempt; however, as explained above, Defendant did not establish via admissible evidence that Plaintiff’s complaints were repaired. Additionally, Plaintiff submitted sufficient evidence to dispute this assertion and establish a triable issue.

Based on all the above, Defendant’s Motion for Summary Judgment and/or Adjudication is DENIED.